No matter how much empathy you feel for a client with financial woes, giving a litigation client money generally violates your state’s version of Model Rule 1.8(e). The rule provides that the only financial assistance you may give a client in connection with pending or contemplated litigation is: (1) to advance litigation expenses and court costs subject to repayment (such as in contingent fee cases); and (2) to pay litigation expenses and court costs on behalf of indigent clients.
A West Virginia lawyer was recently reprimanded for violating the rule, under an agreed disposition.
Funds for inmate clients
The lawyer admitted that over a three-year period, he sent personal funds to a few of his clients in prison.
The total amount of money involved was very small — $150 over the three years, involving the accounts of five or six inmates. The lawyer testified that he felt sorry for his clients, who “repeatedly telephoned his law office complaining of a lack of funds to purchase items from the prison commissary.” He acknowledged that his conduct was wrong.
The Supreme Court of Appeals, in reprimanding the lawyer, said that his “clearly impermissible conduct is not excused by his stated altruistic intent.” In addition to the reprimand, the lawyer was required to take additional ethics CLE courses, submit to a one-year period of practice supervision, and pay the costs of the disciplinary proceeding.
What’s really going on?
Make no mistake — it is definitely wrong to give financial assistance to clients. The policy basis for the rule is set out in the comments: it would “encourage clients to pursue lawsuits that might not otherwise be brought” (harking back to the old concepts of champerty and maintenance you might remember from law school).
But why did the gears of the state’s disciplinary machinery become engaged over such a penny-ante violation — an acknowledged violation that was motivated out of sympathy, and didn’t appear to invoke the ills that the rule was designed to prevent?
The answer might be that a significant part of the lawyer’s practice was representing female inmates who alleged that they were sexually assaulted by corrections officers or others while incarcerated in West Virginia prisons.
In fact, as of 2013, the lawyer was representing about 125 inmates on those kinds of claims. And a significant part of the disciplinary case against the lawyer was based on a complaint from the warden of the West Virginia prison where many of the lawyer’s clients were incarcerated and where they had been allegedly assaulted.
In the disciplinary complaint, the warden charged that the lawyer was offering money to inmates at the prison for referrals for sexual assault cases to be brought against the prison system — a charge that the hearing panel recommended be dismissed because it was not supported by the evidence. In fact, the testimony regarding the supposed solicitation of referrals was shown “either to be untruthful or contradictory in nature.” The lawyer characterized the disciplinary complaint against him as a “witch hunt,” aimed at stifling his representation of inmates.
We may have to keep our human feelings for our clients in check when it comes to helping them financially, and that’s good to remember. Here, though, the motivation for bringing the disciplinary complaint seems to have been more improper than the conduct that was found to violate the ethics rules.